Andrew Quemere v. Essex County District Attorney's Office (SPR 20231703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2023 SPR23/1703 David F. O’Sullivan, Esq. Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney O’Sullivan: I have received the petition of Andrew Quemere appealing the response of the Essex County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 22, 2023, Mr. Quemere requested “[a]ll records related to the criminal case against [a named individual], who in November 1989 was convicted of arson and 15 counts of second-degree murder related to [an identified incident].” On July 5, 2023, the Office responded. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR23/1703, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

David F. O’Sullivan, Esq. SPR23/1703 Page 2 August 7, 2023 custodian must provide the responsive records. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Office’s July 5th Response In its July 5, 2023 response, the Office states: Your request explicitly seeks records pertaining to a criminal prosecution of a named individual. This Office is precluded, on pain of civil and criminal penalties, from disclosing so-called Criminal Offender Record Information. G.L. c. 6, § 167, et. seq. CORI is defined in G.L. c. 6, § 167 as: records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. The file in the case occupies eight bankers’ boxes. Many of the documents in our file fall within this broad definition of CORI.

David F. O’Sullivan, Esq. SPR23/1703 Page 3 August 7, 2023 The file in this case also contains substantial information qualifying under other exemptions to the Public Records Law, including but not limited to:  Private or medical information, see G.L. c. 4, § 7 cl. 26(a) and (c); see also G. L. c. 111, § 70E and G. L. c. 123, § 36. This includes information about private citizens that is medical or psychiatric in nature; it also includes information that “would result in personal embarrassment to an individual of normal sensibilities;” or “contain[s] intimate details of a highly personal nature.” Bos. Globe Media Partners, LLC v. Dep't of Pub. Health, 482 Mass. 427, 439 (2019). “Examples of the types of personal information which the privacy portion of this exemption is designed to protect include: marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcohol consumption, family fights, and reputation.” A Guide to the Massachusetts Public Records Law, 18 (February 2022). Protecting citizen witness information and private information concerning private citizens is both a legal obligation and critical to the function of any law enforcement agency.  Law enforcement investigatory materials, see G.L. c. 4, § 7, cl. 26(f) and Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 859 (1995) (exemption aims at “the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.”) (internal quotations omitted). This includes, but is not limited to, personal identifying information of citizen witnesses or information tending to identify citizen witnesses. See Antell v. Att'y Gen., 52 Mass. App. Ct. 244, 248– 49 (2001)(“Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses.”; “While some material may not immediately identify the witness, ‘[t]he inquiry as to what constitutes identifying information regarding an individual ... must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual . . .’”). See Rafuse v. Stryker, 61 Mass. App. Ct. 595, 599 (2004) (“Even materials relating to an inactive investigation may require confidentiality in order to convince citizens that they may safely confide in law enforcement officials”). If there are specified documents within the file that you believe do not meet the definition of CORI and that do not qualify under another exemption -- for example, copies of particular court documents that you believe may be contained in our file -- please let us know by issuing a narrowed request. In identifying these documents, you have a duty of reasonable specificity. G.L. c. 66, § 10 (a)(i) (request must “reasonably describe[] the public record sought”). To assist you in narrowing your request, please note that the criminal docket re publicly accessible via www.masscourts.org or at the courthouse. The case name is Commonwealth v. [a named defendant] and the docket number is 8877CR13527. Also, if you do

David F. O’Sullivan, Esq. SPR23/1703 Page 4 August 7, 2023 not already have it, we would provide free of charge a copy of the transcripts from [the defendant’s] two trials, which is readily available in our file and not subject to any exemption, to assist you in narrowing your request. Let me know if you’d like us to do so. Absent further specification, a staff member would be required to review every document in the file to cull out only those records that are non-CORI and not subject to another exemption specified above. The law provides that you are responsible for paying an estimate of these costs in advance. We decline to waive these fees because your request would divert substantial staff time from criminal caseloads. We will, however, discount the fee. Based on the size of the file, I conservatively estimate the time required to staff time required to review, cull and redact the material at approximately 30 hours. Only 24 hours of this time is compensable to the Commonwealth, at $25 per hour, or $600. G.L. c. 66, § 10 (a)(iii). Will we [sic] discount this fee by $50, for a total estimate of $550. Note this fee does not include postage and copying costs, which would be also assessed prior to the mailing of any non-exempt responsive documents. G.L. c. 66, § 10 (a)(iii). If the actual costs are less than this estimate, you would be refunded any difference. If the actual costs are greater, you would be billed prior to any further processing. Current Appeal In his appeal, Mr. Quemere asserts: The office must provide a response that identifies any records the office intends to withhold and explain with specificity how the exemptions apply to the withheld records. If the office provides a fee estimate, it must provide more detail and exclude all personnel time based on redactions that are not required by law. The office must also provide the remaining transcripts and agree to let me review the responsive records in person. 950 C.M.R. 32.07(1)(b) provides in pertinent part: (b) as an alternative to obtaining copies of records from a records access officer a requester shall be permitted, to the extent feasible, and at reasonable times: 1. View and inspect records[.] 950 C.M.R. 32.07(1)(b). Pursuant to 950 C.M.R. 32.07(1)(b), the Office must clarify if it is feasible for Mr. Quemere to view the responsive records in-person.

David F. O’Sullivan, Esq. SPR23/1703 Page 5 August 7, 2023 Although the Office has estimated that the process of producing the responsive documents for production will take 30 hours of employee time, it is unclear how long each task will take. In addition, it is unclear if the Office is reviewing the documents to redact or segregate the records pursuant to certain exemptions. Under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Office must clarify if it is assessing a fee for segregation and redaction for other exemptions that are not required by law. The Office must also clarify how many minutes per page it is requiring to segregate or redact the responsive records. Further, although the Office indicates that it would charge an hourly rate of $25, it is unclear whether the Office has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The Office must clarify this. I encourage Mr. Quemere and the Office to communicate in order to facilitate producing records efficiently and affordably. Mr. Quemere may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). With regard to Mr. Quemere’s objections regarding the Office’s claims to withhold the records pursuant to the Criminal Offender Record Information Act as it operates through Exemption (a), Exemption (c), and Exemption (f), please be advised that where the Office has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Quemere may appeal the substantive nature of the Office’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Additionally, based on Mr. Quemere’s appeal where he states that “[t]he office must provide the missing transcript records if they are in the office’s possession[,]” it is unclear if the Office possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay).

David F. O’Sullivan, Esq. SPR23/1703 Page 6 August 7, 2023 Conclusion Accordingly, the Office is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere